Aung San Suu Kyi: Summary of decision and conclusion

Decision of the Guardian's readers' editor. Complaint from Jared Genser, a lawyer instructed by a member of the family of Aung San Suu Kyi ("ASSK"), about Not such a hero after all, 11 November 2008, page 4, G2 ("the article").1

28 May 2009This is an updated version of the decision sent to the parties on 3 April. It has been amended following further comments from Jared Genser and the authors. Other changes have been made to correct grammar and typos and to clarify certain points. The parties have agreed to the publication of this summary of my decision.2

SUMMARY OF DECISION AND CONCLUSION

1. The complaint is that the article is both unfair and inaccurate. Jared Genser seeks three remedies: he asks for the article to be withdrawn; and a negotiated apology; and a 2,800 word response to the article (written by the "designated representative" of ASSK) to be given the same prominence as the original article in the paper and online.

2. The article by Cathy Scott-Clark and Adrian Levy ("the authors") appeared in the features section of the Guardian and, the complaint says, on the front of the Guardian's website as well.3 It was a long piece (2,800 words), which contained a great deal of opinion from the authors and others. It was severely critical of ASSK as a political leader.4

3. I am not an expert on Burma and my analysis of the article and the complaint is largely based on information provided by Jared Genser and the authors of the article.

4. The article questions the effectiveness ASSK's political leadership and the progress made by the National League for Democracy ("NLD") in the last twenty years. All parties agree these are important issues for discussion and they belong in the public domain notwithstanding that ASSK is a prisoner of conscience.

5. A Response column from Thaung Htun, the UN Representative for the National Coalition Government of the Union of Burma (the government in exile) was published in print and online on 25 November 20085. Thaung Htun has a close connection with the issues. His reply addresses criticisms of the NLD and ASSK made in the article.6

6. Mr Genser seeks a further reply to the article from a "designated representative" of ASSK. He says that ASSK is not in a position to respond in person and that any reply would need to come from a third party. He suggested that a response from someone such as Desmond Tutu might be appropriate7. The Guardian has agreed to publish in print and online a 1000 word response from Archbishop Desmond Tutu subject to its usual legal and editorial processes.

7. While maintaining that the authors were wrong to criticise ASSK's "silence" on certain issues, on the ground that it is impossible for her to make her views known, Mr Genser says that the authors should have tried to get a response from her or her representatives. Much of what was said was opinion and I am not convinced that was strictly necessary. Would there have been any point, in any case, in the authors approaching ASSK for comment? It seems unlikely that such an endeavour would have been fruitful.

8. Mr Genser says it was "fundamentally unfair" of the authors not have obtained comment from ASSKs family or lawyers or political allies for comment before publication. The authors responded to his suggestions about people they should have contacted (see paragraph 11 of the Decision). As I have already pointed out, much of what was said was opinion from the authors and others and it was not, in my view, strictly necessary to add opposing, positive, comments from these people. In relation to this point I have taken into account that the opinions in the article are explicitly set against an opposing, entirely positive, picture of ASSK and the first 479 words of the piece were concerned with this more conventional view of her as a political figure.

9. The complaint engages the right to freedom of expression. ASSK has been leader of Burma's National League for Democracy for twenty years and has been under house arrest for thirteen of them. She has made remarkable personal sacrifices. She is a political figure and as such she must be prepared to exhibit greater tolerance of criticism than a private individual. All parties agree that the starting point for my decision is that the authors of the article and those quoted in it were entitled to express their opinions about ASSK's political leadership.

10. In usual circumstances a political figure is expected to take even harsh criticism as part of the job but this situation is exceptional. ASSK is under house arrest and, as stated above, she was extremely unlikely to be in a position to respond to the article herself either before or after publication. Given these circumstances the tone of the article (which was extremely hard hitting) and the headline (which was sensational) were misjudged; these matters should have been addressed in the editing process.

11. Mr Genser's complaint raises 64 points of inaccuracies. A pivotal factual issue is whether ASSK has been able to communicate her views – about her policies and recent events, such as the September 2007 uprising – in some, albeit limited, way but has chosen not to do so. Several of the complaints about inaccuracies are directed towards this issue. The authors assert that those opportunities have arisen. Mr Genser says they have not. I am not in a position to make a definitive finding of fact on this point, but I have reached some conclusions about this aspect of the complaint based on information provided by the authors and Mr Genser.

12. At the heart of the complaint is the question of whether the article should have been published at all. The complaint says that reliance on anonymous sources, unfairness (because the article didn't contain comment from ASSK or her representatives) and a very great number of inaccuracies mean that the answer to this question must be negative. I do not agree with him about the use of anonymous sources.

13. There were 8 anonymous quotations and some of them were pejorative. The G2 editors involved in publishing the article did not discuss the use of pejorative anonymous quotes with the senior editor of the day in accordance with the editorial code. In the absence of his approval they should have paraphrased such quotes. In my view this breach of process, while regrettable, is not in itself a reason to withdraw the article.

14. The article contained significant errors, which are identified in the wording of the apology and correction. In addition, the tone of the piece was, in my view, inappropriate. However, I am reluctant to advocate that an article containing opinions about a political figure's leadership is deleted. I recommend that the correction is published in print and online and is linked to the piece. The article should be amended (to correct the errors set out in the apology and correction) and the headline should be changed. A footnote should make clear that the article was changed following a complaint. Desmond Tutu's reply to the article should also contain a link to and from the correction and the article itself.

Endnotes

1. The identity of the family member has not been disclosed. In a telephone conversation on 4 December 2008 Jared Genser told me that he is ASSK's personal lawyer and is instructed by a member of her family who is acting under a power of attorney. He said that ASSK does not know that he is making this complaint.

6. In his Response column Thaung Htun says there were "several misinterpretations and failures to contextualise". He confirmed that Burma's pro-democracy movement is self-critical and critical of ASSK. He said: "The writers have wrongly assumed that the Burmese pro-democracy movement's willingness to be self-critical and/or to be critical of Suu Kyi is evidence of its demise…rather than signal the breakdown of the opposition movement, these voices prove its strength – its ability to air disagreements and to debate differences without recrimination." On the subject of ASSK's silence and the absence of clear policies Thaung Htun said that the article blamed ASSK for the problems caused by Burma's military regime. ASSK's "seemingly truculent disengagement" was not her choice, he said. "Under the regime's iron rule, it is effectively impossible to engage the population and even those who represent them democratically. As such, lasting policy cannot be secured as it would be policy on the run, created without due reference to our constituents – by definition undemocratic." He concluded: "Our movement encourages an educated engagement with the issues we are debating. Suu Kyi herself has never shied away from a good debate; informed criticism is constructive and ultimately helpful. Yet firing ill-informed grapeshot in the interests of deflating a national heroine is useful only in terms of sensationalism, not solid debate."

About this article

Aung San Suu Kyi: Summary of decision and conclusion

This article was published on
the Guardian website
at 19.01 EDT on Sunday 31 May 2009.
It was last modified at 07.00 EDT on Monday 19 May 2014.
It was first published at 19.00 EDT on Sunday 31 May 2009.